Citation Nr: 21028912 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-60 644 DATE: May 12, 2021 ORDER Service connection for spondylolisthesis with degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine claimed as secondary to service connected right knee disability of patellofemoral pain syndrome with iliotibial band syndrome and patellar tendonitis is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his spondylolisthesis with DDD and DJD of the lumbar spine is proximately due to his service-connected right knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability of spondylolisthesis with DDD and DJD of the lumbar spine have been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. § 38 U.S.C. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2002 to September 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a lumbar spine disorder. Spondylolisthesis with degenerative disc disease and degenerative joint disease of the lumbar spine The Veteran contends that service connection is warranted for a lumbar spine disorder. At his September 2020 hearing he alleged that his lumbar spine disorder was either due to an in-service motor vehicle accident (MVA) or secondary to a service-connected right knee disability. He testified that following the in-service MVA he had pain "everywhere" including his back but was unable to locate treatment records showing he was prescribed muscle relaxers. He indicated that after service, he self-treated with over the counter medications until starting private treatment around 10 years earlier. He testified that his private doctor said there is a link between his back disorder and his service-connected knee disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. Certain chronic diseases, to include arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection solely on the basis of continuity of symptomatology can only be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54 ). Service treatment records are negative for complaints of or treatment for any issues with the Veteran's lumbar spine. However, he was noted to have been in a motor vehicle accident with a November 2004 post ER followup showing that the car slid off the road to avoid hitting another car but slid off road into shrubbery and hit a horse trailer. He was treated for minor cuts and abrasions left arm, left ear, and left side of face. No mention of back issues was made. On separation examination and report of medical history in August 2007 the Veteran's back examination was normal and he confirmed having been in a motor vehicle, with no sequelae noted. Post-service, the Veteran is noted to have been treated for appendicitis in December 2009 with no significant findings regarding the lumbar spine noted, including on abdominal CT scan which focused on the appendicitis findings. He is shown to have begun medical treatment for back problems at Kaiser Permanente in December 2013, when he was noted to have been seen for a history of back pain 1 month earlier. The diagnosis was sciatica and he was told it would go away. He had been given Naproxen. This episode in December 2013 began 2 days earlier as pain in left lower back that occasionally radiates down left leg with some tingling in thigh. In June 2014 he was seen for back pain for 6-7 months, with an initial visit in December 2013, at which time he had sciatica with pain down into legs. His sciatica improved but he continued to have persistent low back pain. He was seeing chiropractor. He was described as having a band of pain around lower back and buttocks, with pain of 5-6 intensity with radiation to buttock. His pain was aggravated by standing, walking, and sitting. X-rays from June 2014 of the lumbosacral spine for history of chronic persistent low back pain and tenderness L2-3. The impression was of Grade I anterolisthesis of L4 relative to L5 and disk space narrowing at L4-5. Since the scout image for CT scan in 2009 there has been interval narrowing of L4-5 disc space. . Private chiropractic records show that he received chiropractic treatment for back pain from 2014 through 2020. The report of a December 2015 VA examination diagnosed degenerative arthritis and intervertebral disc syndrome of the lumbar spine. The Veteran's medical history was of back pain that has been progressively getting worse over the last 3-5 years. Prior to that, he had intermittent episodes of pain but now he had daily morning stiffness and soreness that would not subside through the day. A history of being diagnosed with sciatica by a physician and undergoing chiropractic treatment for the past 2 years which has been very helpful. He now had pain that radiates down the right lower extremity and felt it is connected to his iliotibial (IT) band. He found that at times his right leg had difficulty supporting him, particularly after prolonged sitting. He experienced activities-related flareups that took 1 to 1-1/2 days for his pain to subside back down to baseline levels. He was still able to care for his activities of daily living but had difficulty in certain aspects of dressing due to his back. Physical examination disclosed decreased range of motion with pain noted, which caused functional loss on all ranges of motion. There was pain on weightbearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine (back). This was located in L3-S1 spinous processes, bilateral quadratus lumborum SI joint and gluteus maximus. X-ray findings yielded an impression of moderate degenerative disc disease at L4-5, with mild facet arthrosis of the lower lumbar spine. Also diagnosed was a 2. 8 mm anterior listhesis of L4 on L5 with findings of spondylolysis at this level. The VA examiner gave an opinion that the back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no evidence of chronicity of condition and separation examination dated in August 2007 did not show any back complaints. The examiner opined that the Veteran has spondylolisthesis with degenerative disc and degenerative joint disease which if it was present during active service, he would have had a chronic back condition with a chronic complaints. There was no evidence of chronicity and no nexus. The examiner did not remark on the history of the in-service motor vehicle accident or any lay history of symptoms dating back to service. The VA examiner also opined that the back disorder was less likely than not proximately due to or the result of the Veteran's service-connected condition. The rationale was that the service-connected right knee would not cause his spondylolisthesis and degenerative disc disease and degenerative joint disease. The examiner was unable to link the two conditions as they are separate and independent of one another. Also, the examiner was unable to link the back condition to the knee disorder by aggravation noting that the Veteran has radiculopathy which originates in the lower back and radiates distally. Among favorable evidence submitted was March 17, 2020 letter from the Veteran's private physician from Kaiser Permanente, M.P., D.O. who pointed out that he has treated the Veteran for several years. The Veteran was noted to have chronic patellofemoral issues with his right knee. He had also started experiencing problems with his lower back. This physician stated that he has seen instances where chronic knee issues cause low back pain. The knee issues are not causing his disc issues, however, in theory his knee issues could be aggravating his known disc issues and increasing his low back pain. A follow up letter from this same physician on March 18, 2020 stated that the Veteran reported having imaging reports from 2009 which mention anterolisthesis of the lower back at L4 5 levels. This doctor did not have access to these, but has imaging reports from 2014 that do show this. The doctor opined that that it would be unusual to have these changes in the lower back at his age without some kind of injury. A September 2020 letter from the Veteran's chiropractor, K.W. D.C., gave a history of having treated the Veteran since 2013 for back pain and stiffness. The Veteran had current low back pain with daily activities, work activities and self-care. He had a history of right knee injury while in service, and was diagnosed with chronic iliotibial band syndrome. X-rays of back in 2009 and 2014 were noted. He was also noted to have daily activities causing right knee and constant stiffness performing and following activities. The Veteran also reported a diagnosis of degeneration of his lower lumbar spine. He reported a gradual onset of his lower back pain in several years post knee injury, with gradual worsening with work and daily activities in the past 5-7 years. Physical examination disclosed lumbar findings of restricted active and passive range of motion due to pain and stiffness. He had positive straight leg raise findings bilaterally, intact sensation, 5/5 muscle strength and stiffness in the back (right upper back). The clinical impression, history and physical examination revealed chronic mild cervical, and thoracic joint hypermobility/dysfunction with hypertonicity/spasms of thoracic and cervical regions. He had chronic moderate lumbar and sacroiliac joint hypermobility/dysfunction, hypertonicity and spasms of the lumbar and right sacroiliac regions. Following review of the patient's health history, his subjective complaints, and the results of the orthopedic evaluation it was K.W. D.C.'s professional opinion that the gradual onset of the Veteran's lower back injury was most likely a result of his ongoing right knee injury from 2005 (during active duty). Due to his required work activities and physical lifestyle, the Veteran will require ongoing supportive treatment to help reduce continued exacerbation and progression of his knee and back conditions. Future treatments may involve chiropractic manipulative therapy, soft tissue therapy, acupuncture, physical/exercise therapy, and activities modifications. . After reviewing the pertinent lay and medical evidence, the Board finds that the balance of the favorable and unfavorable nexus evidence is in equipoise. The evidence shows a current disability of spondylolisthesis with DDD and DJD of the lumbar spine. Regarding causation on a primary and secondary basis, there have been inadequacies in the December 2015 VA examiner's rationale which included failure to adequately discuss aggravation beyond a statement suggesting that the knee and back were separate and independent of one another and inadequately explaining the lack of aggravation by merely noting that the Veteran has radiculopathy that originates in the lower back and radiates distally. Thus, this VA opinion is diminished in probative value and weight. It is not found to be of higher probative weight than the cumulative weight of favorable opinions from the Veteran's chiropractor, K.W. and private physician from Kaiser Permanente, M.P. Although somewhat flawed, when considered together, these opinions contain a rationale suggesting that the Veteran's lumbar spine disorder, in part by noting the chronic patellofemoral issues with his right knee with subsequent problems with his lower back and Dr M.P.'s observation that the degenerative changes in the lower back at his age were unusual without some kind of injury. This was further supported by the chiropractor's opinion that the back disorder was likely resulting from his right knee disorder. These opinion are at least on equal probative footing as the unfavorable VA examination report. Consequently, the balance of the evidence is in favor of granting service connection for a disability of spondylolisthesis with DDD and DJD of the lumbar spine on a secondary basis. Moreover, the use of the phrase "gradual onset" in K.W.'s opinion leads the Board to conclude that the back disability is proximately due to, rather than aggravated by, the service-connected right knee disability, obviating the need for a finding as to baseline levels of disability. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.